MULTILATERAL ENVIRONMENTAL AGREEMENTS This book seeks to examine the genesis, development, and proliferation of multilateral environmental agreements (MEAs) – built-in lawmaking mechanisms and processes of institutionalization – and their ad hoc treaty-based status and the issue of the legal personality of their secretariats. It provides legal understanding of the location of MEA secretariats within an existing international host institution, as well as discussion of the issues of relationship agreements and interpretation of the commonly used language that triggers such relationships. It places under scrutiny the standard MEA phrase “providing a secretariat,” delegation of authority by the host institution to the head of the convention secretariat, possible conflict areas, host country agreements, and the workings of relationship agreements. The book offers an authoritative account of the growing phenomenon in which an existing international institution provides a servicing base for an MEA that, in turn, triggers a chain of legal implications involving the secretariat, the host institution, and the host country. Professor Bharat H. Desai holds the prestigious Jawaharlal Nehru Chair in International Environmental Law and is Professor of International Law, as well as Chairman of the Centre for International Legal Studies, at the School of International Studies of Jawaharlal Nehru University in New Delhi. As a Humboldt Fellow, he worked at the University of Bonn on the treatise Institutionalizing International Environmental Law. He is the author of Creeping Institutionalization: Multilateral Environmental Agreements and Human Security, an associate editor of the Yearbook of International Environmental Law, and Vice Chairman of the Foundation for Development of International Law in Asia.

Multilateral Environmental Agreements LEGAL STATUS OF THE SECRETARIATS Bharat H. Desai Jawaharlal Nehru University

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City Cambridge University Press 32 Avenue of the Americas, New York ny 10013-2473, USA Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107610514 © Bharat H. Desai 2010 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Reprinted 2011, 2012 First paperback edition 2013 A catalogue record for this publication is available from the British Library Library of Congress Cataloging in Publication Data Desai, Bharat. Multilateral environmental agreements : legal status of the secretariats / Bharat H. Desai. p. cm. Includes bibliographical references and index. isbn 978-0-521-88328-3 (hardback) 1. Environmental law, International. 2. Foreign trade regulation. 3. International trade. 4. International labor activities. I. Title. k3585.d479 2010 341.4–dc22 2009042398 isbn 978-0-521-88328-3 Hardback isbn 978-1-107-61051-4 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For Jay and Sonal

Contents

Preface

Introduction 1 Institutionalizing Cooperation Introduction Organic Link Institutionalized Cooperation Institutions and Organizations Institution-Building Process Conclusion

2 Multilateral Environmental Regulation Introduction Rapid Growth Pre-Stockholm: Limited Concerns Stockholm: UN Environment Programme as a Catalyst Rio’s Contribution Common Concerns Montevideo Mandate Conclusion

3 Nature and Character of Environmental Agreements Introduction Proliferation of Agreements Regulating State Behavior Salient Characteristics Sui Generis Treaties Softness of Hard Law Framework Convention Approach

page xi 1 7 7 7 9 12 14 17 19 19 21 24 27 29 34 36 45 47 47 48 54 60 63 69 76 vii

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Regional Seas Institutional Structures Conference of the Parties Secretariats Conclusion

4 Host Institution Arrangements Introduction Treaty Mandate Establishing a Secretariat Providing a Secretariat Review Provision Host Institution as a Secretariat Functions of the Host Institution Cost Effectiveness Locating the Secretariat Away from the Host Institution Chain of Legal Implications Conclusion

5 Legal Status Introduction Role of the COP Legal Capacity/Personality Legal Character of Treaty Bodies Four Models of Secretariats Possibilities of Conflict Appointment of a Secretary-General Treaty-Making Power Headquarters Agreements Conclusion

6 Conclusions

81 86 91 93 95 97 97 98 101 107 119 121 124 126 128 129 131 133 133 134 136 140 142 158 159 164 166 169 171

Appendices Part I Relationship Agreements I Delegation of Authority to the Secretary General Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR) II Agreement between the CITES Standing Committee and the Executive Director of UNEP

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III Administrative Arrangement between UNEP and the Secretariat of the CBD Part II Headquarters Agreements IV Headquarters Agreement between UNESCO and France V Agreement between the United Nations and the Republic of Kenya regarding the Headquarters of the United Nations Environment Programme VI Agreement between the Secretariat of the Convention on Biological Diversity and the Government of Canada concerning the Headquarters of the Convention Secretariat

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VII Agreement between the Federal Republic of Germany and the United Nations concerning the Headquarters of the United Nations Volunteers Programme

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VIII Agreement among the United Nations, the Government of the Federal Republic of Germany, and the Secretariat of the United Nations Framework Convention on Climate Change concerning the Headquarters of the Convention Secretariat

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IX Agreement between the United Nations, the Government of the Federal Republic of Germany, and the Secretariat of the United Nations Convention to Combat Desertification concerning the Headquarters of the Convention Permanent Secretariat

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X Agreement among the Government of the Federal Republic of Germany, the United Nations, and the Secretariat of the Convention on the Conservation of Migratory Species of Wild Animals concerning the Headquarters of the Convention Secretariat Index

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Preface

This study is an off-shoot of the work (begun in 1998) by the author on the process of “institutionalization” in the field of international environmental law. This book seeks to take a closer view of the multilateral regulatory technique to address sector-specific environmental problematique, as well as of the legal status of the secretariats that “service” the institutionalized intergovernmental process. The work was spread over a period of some nine years, during which the author visited various secretariats of multilateral environmental agreements (MEAs) and held discussions with concerned dramatis personae in the field, both in person and through written communications. The initial interest in the crucial aspect of legal status of the secretari¨ ats was triggered by interactions with Arnulf Muller-Helmbrecht, then Executive Secretary of the Convention on Migratory Species of Wild Animals (CMS), during my stay in Bonn. I was inspired by Ulf’s sheer passion, knowledge of the field, legal acumen, and firsthand account of the pitched battles he fought to extract “legal due” for the secretariat of the CMS. The resultant insight provided the initial basis for a closer look into the mystical area of the legal status of convention secretariats from my perches at various times in the cities of Bonn, Geneva, and Heidelberg. I express my gratitude to Alexander von Humboldt Stiftung who generously made possible my stays in Bonn, Geneva, and Heidelberg. I enjoyed the discussion sessions on multilateral institutional issues on the xi

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environment with Rudolf Dolzer at the Institute of International Law of the University of Bonn. They helped me to have an incisive understanding of the role of various actors, as well as the workings of regime-based institutions. I have had the benefit of staying in Heidelberg to work at the Max-Planck Institute of Public International Law. I thank Rudiger Wolfrum and Armin von Bogdandy for providing me with work facilities. In the course of writing this book, I had the great pleasure of interacting with several heads and legal officers of convention secretariats, UNEP officials, and officials of other host institutions who generously shared their views and made available relevant documents. They include Barbara Ruis, Calestous Juma, Dan Ogolla, Daniel Navid, Elizabeth Mrema, Francesco Bandarin, Gerardo Gunera-Lazzaroni, Iwona Rummel-Bulska, Janos Pasztor, Jim Armstrong, John Donaldson, Katharina Kummer, Lyle Glowka, Marci Yeater, Martin Krebs, Michael Graber, Richard Kinley, and Robert Hepworth. I greatly appreciate the working space provided to me by the secretariats of the UNFCCC and CMS in Bonn and of the UNITAR at the International Environment House in Geneva. I greatly appreciate the special gestures of Ralph Zacklin, former Assistant Secretary General of the UN Office of Legal Affairs, and ¨ Klaus Topfer, former UNEP Executive Director – who both took time to send me detailed notes on their respective perspectives on the subject – as well as of Maritta Koch-Weser, former Director-General of the IUCN, who spared time in Gland for discussions on various issues. In the wake of this book, I have benefited from the insight – through discussions in person or through written communications – and the works and experiences of several scholars and practitioners in the field. These include Alan Boyle, the late Alexander Kiss, Alexander Timoshenko, Bakare Kante, C. F. Amerasinghe, Daniel Navid, David Freestone, ¨ Donald Kaniaru, Edith Brown Weiss, Geir Ulfstein, Gerhard Loibl, ¨ Gunter Handl, Francoise Burhenne, Jan Klabbers, Jose Alwarez, Jutta Brunnee, Nick Robinson, Niels Blokker, Oran Young, Peter Sand, Philippe Sands, Rahmatullah Khan, R. R. Churchill, and Wolfgang Burhenne.

PREFACE

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My scholarly quest in this field has been nurtured by regular interactions with some of my brightest students, who provided a stimulating springboard for classroom discussions and widening horizons through their research works under my supervision. Last, but not least, I am grateful to John Berger, Senior Editor at Cambridge University Press, who all along has shown immense patience, and who encouraged me to overcome the vicissitudes of life in order to complete this book. January 29, 2010 [email protected]

Introduction

There is an active link between development of law and the institutional mechanisms that emerge from it. In this context, the establishment of a multilateral regulatory approach in the field of environment is no exception. The process of centralized legalization concerning sectoral environmental problems has almost been institutionalized, especially in the past three decades. Despite the fact that this multilateral lawmaking modus operandi has worked in a piecemeal, ad hoc, and sporadic manner, it has contributed in thickening the web of treaties1 as the most important source of international environmental law. It has emerged as a “predominant method”2 of regulating state behavior on a global problematique. 1

2

As per the state practice, nomenclature of a multilateral instrument depends on the idiosyncrasies of the parties. As such, it is not necessary that the contracting parties need to use specific words. To decipher the nature of the instrument at which the states have arrived, one needs to look for the intention of the parties as well as the content of the instrument. In general, use of the words “treaty” or “agreement” is commonplace. The Vienna Convention on the Law of Treaties (1969) defines a “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (see Article 2(a)); available at www.unog.ch/archives/vienna/vien 69.htm. Article 2(a) of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) also uses the same language; available at www.unog .ch/archives/vienna/vien 86.htm. “Developments in the Law: International Environmental Law,” Harvard Law Review, vol. 104, no. 3, 1991, p. 1521.

1

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Cover Cover Cover photo: photo: photo: ©istockphoto.com/Andrew ©istockphoto.com/Andrew ©istockphoto.com/Andrew Penner Penner Penner Cover Cover Cover design: design: design: Wendy Wendy Wendy Bedenbaugh Bedenbaugh Bedenbaugh